HQ 112544: Protest No. 0901-91-1-00487; Vessel Repair Entry No. C09-0014342-8; S/S KINSMAN INDEPENDENT; Casualty; Deferred Repairs; Underwater Damage; 19 U.S.C. 1466 (d)(1).

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 112544

                        February 11, 1993

VES-13-18-CO:R:IT:C  112544 DEC

CATEGORY: Carriers

Chief, Residual Liquidation Branch
U.S. Customs Service
6 World Trade Center
New York, New York  10048-0945


RE:  Protest No. 0901-91-1-00487; Vessel Repair Entry
     No. C09-0014342-8; S/S KINSMAN INDEPENDENT; Casualty;
     Deferred Repairs; Underwater Damage; 19 U.S.C. 1466 (d)(1).


Dear Sir:

     This is in response to your memorandum dated November 30,
1992, transmitting the above referenced protest and supporting
documentation.  Our ruling on this matter is set out below.

FACTS:

     On or about August 25, 1989, the S/S KINSMAN INDEPENDENT was
damaged as it departed from the Peavey and the Lake and Rail 
elevators on the Buffalo River in New York.  The crew discovered
some damage to the starboard tanks and noted that all tanks were
tight and were not making water.  No repairs were made.  

     On November 24, 1990 (fifteen months later), the S/S KINSMAN
INDEPENDENT ran aground and it was compelled to be put into
Thunder Bay, Ontario, for repairs.  While the vessel was in dry
dock, the U.S. Coast Guard required that both the damage from the
November 24, 1990, grounding as well as the damage caused on or
about August 25, 1989, be repaired before the ship return to
commercial service.

     Customs issued a ruling dated July 7, 1991, that the foreign
repairs performed on the S/S KINSMAN INDEPENDENT which are
attributable to the November 24, 1990, grounding were
necessitated by a casualty occurrence.  Accordingly, remission
pursuant to 19 U.S.C. 1466(d)(1) was granted.  However, repairs
pertaining to damage which the record indicates was incurred on a
prior voyage were deemed dutiable.   Headquarters Decision VES-
13-18-CO:R:IT:C 111751 GEV.

                               -2-


     The basis of this protest stems from the assessment of
duties on repairs to the vessel's starboard side and bilge that
were unrelated to the November 24, 1990, grounding.  Kinsman is
seeking remission of duties in the amount of $28,728.35, plus
interest accrued from the date of liquidation (August 30, 1991).


LAW AND ANALYSIS:

     Title 19, United States Code, section 1466 provides, in
pertinent part, that:

          (d)  If the owner or master of such vessel
               furnishes good and sufficient evidence
               that-
               (1)  such vessel, while in the regular course of
                    her voyage, was compelled, by stress of
                    weather or other casualty, to put into such
                    foreign port and purchase such equipments, or
                    to make such repairs to secure the safety and
                    seaworthiness of the vessel to enable her to
                    reach her port of destination . . .
          then the Secretary of the Treasury is authorized to
          remit or refund such duties . . ..

19 U.S.C. 1466 (1992).

     Pursuant to Customs ruling VES-13-18-R:CD:C 102707 BJF,
dated July 19, 1977, "...for the purpose of 19 U.S.C. 1466, a
voyage begins when a ship, having departed a port is passing upon
the seas to another port or to several ports."  This holding is
premised upon judicial precedent in conjunction with the general
interpretation of section 3114, Revised Statutes (19 U.S.C.
1466(a)) that "the section is to be construed so as to give as
much protection as possible against the competition of foreign
labor." (see 33 Op. Atty. Gen. 432).

     Examination of this requirement, standing alone, supports a
denial of the protest seeking remission of duty for the repairs
related to the August, 1989.  The S/S KINSMAN INDEPENDENT
suffered the damage in question on the Buffalo River as it was
pulling away from the Peavey and the Lake and Rail elevators
prior to departing from a port and was not passing upon the seas
when the resulting damage occurred.








                               -3-



     Customs has determined:
 
          [T]hat the first condition laid down by the Statute
          (1466) is that the vessel must have been in the
          regular course of her voyage.  This has been held
          to require that the stress of weather or casualty
          which necessitated the repairs must have been
          experienced during the course of the same voyage on
          which the repairs were made..

C.I.E. 1325/58, September 18, 1958.

     The term "casualty" as it is used in the statute, has been
interpreted as something which, like stress of weather, comes
with unexpected force or violence, such as fire, explosion, or
collision.  Dollar Steamship Lines, Inc. v. United States, 5
Cust. Ct. 28-29, C.D. 362 (1940).  Consequently, a casualty
arises from an identifiable event of some sort.  The statute is
clear in requiring "good and sufficient evidence" of casualty. 
In the absence of evidence of such a casualty event, we must
consider the repair to have been necessitated by normal wear and
tear.  Headquarters Decision, VES-13-18-CO:R:CD:C 106159 LLB,
dated September 8, 1983.

     In the case at hand, the casualty claimed is the accident
that occurred on the Buffalo River in August, 1989, but was not
repaired until November, 1990.  It is important to note that the
Master of the S/S KINSMAN INDEPENDENT, in his statement dated
April 9, 1991, and made a part of the record, determined that the
damage to the ship on the starboard side could have only happened
when he experienced difficulty on the Buffalo River.
     
     Notwithstanding the severity of the damage incurred in the
August, 1989, incident, there is no evidence that the applicant-
operators affected any repairs to the vessel while it remained in
commercial service in its unrepaired condition.  Furthermore,
there is inferential evidence from the Master's statement that
the damage found when the vessel was placed in dry dock could
have only occurred, to the best of his knowledge, while on the
Buffalo River.  In accordance with C.I.E. 1262/60, September 20,
1960, relief is not warranted where repairs are deferred for a
considerable period of time after inclement weather or other
casualty occurs, and the vessel, nonetheless, remains in trade,
in an unrepaired condition.





                               -4-


     The fact that this protest involves damage that occurred
below the water line does not cloud the final result.  Having
encountered the problems with underwater damage previously,
Customs has stated that:

          Experience demonstrates damage to underwater parts
          of vessels, including propellers, is usually not
          easily detectable or susceptible of definite proof
          respecting the date and place of occurrence.
          Therefore, relief under section [1466] is granted
          in the absence of testimony showing that the vessel
          was grounded, struck bottom, or her propeller
          contacted some floating object capable of causing
          damage prior to the commencement of the voyage.

C.I.E. 1202/59, August 20, 1959.

     The present situation involves damage that occurred during a
previous voyage.  The Master's statement as well as the
applicant's admission of an earlier accident on the Buffalo
River, absent any other evidence of a subsequent casualty
occurrence, provides Customs no basis to remit the liquidated
duty.  While the damage that occurred from the August, 1989,
episode may not have appeared too serious from a cursory
investigation, there is no other evidence that the applicant
offers to explain the damage which the U.S. Coast Guard required
to be repaired.

HOLDING:

     Accordingly, the applicant's protest seeking remission of
duty in the amount of $28,728.35 plus interest accrued from the
date of liquidation is hereby denied.  The vessel did not depart
from a port nor pass upon the seas when she suffered damage. 
Additionally, no sufficient explanation of an intervening event
justifying remission for the deferred repairs was offered for
consideration. 


                                   Sincerely,




                                   Stuart P. Seidel
                                   Director, International Trade 
                                   Compliance Division